2. Involuntary commitment pursuant to the Sexually Violent Predator Act, K.S.A.
59-29a01
et seq., is a civil confinement, not criminal or punitive. Therefore, the Act does not
violate the prohibition against double jeopardy or ex post facto laws.

3. The constitutionality of a statute is presumed, and all doubts must be resolved in favor of
its validity. Before a statute may be struck down, it must clearly appear that the statute
violates the Constitution.

4. The fundamental requirement of due process is a fair trial in a fair tribunal. The essential
elements of due process of law are notice and an opportunity to be heard and to defend in
an orderly proceeding adapted to the nature of the case.

5. The basic requirements of procedural due process are clearly satisfied by the Sexually
Violent Predator Act, K.S.A. 59-29a01 et seq., which provides for all necessary
basic
protections, including appointed counsel, a probable cause hearing, appointment of
qualified experts for examinations, a jury trial requiring a unanimous decision, appeals,
annual examinations, discharge petitions, hearings, and the strictest possible burden of
proof on the State.

6. As the tests for determining the constitutionality of a statute under due process and equal
protection grounds weigh almost identical factors, the United States Supreme Court's
decision in Kansas v. Hendricks, 521 U.S. ___, 138 L. Ed. 2d 501, 117 S. Ct. 2072
(1997), that the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., does not
violate
substantive due process, indicates the Act survives equal protection scrutiny as well.

7. The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., does not treat
similarly
situated individuals dissimilarly. All members of the class of persons who are sexually
violent predators with a mental abnormality or personality disorder likely to engage in
predatory acts of sexual violence are subject to identical treatment, and there exist clear
distinctions between this class and other classes which are not similarly treated.

8. The legislature has broad constitutional authority to adopt statutory programs to confine
and treat people who might be dangerous to themselves or others and who suffer from
some mental ailment, whether a mental abnormality, a personality disorder, or a mental
illness as statutorily defined. The legislature, however, is under no duty to act to the
fullest extent of its authority.

9. Equal protection of the law does not require the State to choose between attacking every
aspect of public danger or not attacking any part of the danger at all. The legislative
authority is not bound to extend its regulations to all cases which it might possibly reach.
The legislature is free to recognize degrees of harm, and it may confine its restrictions to
those classes of cases where the need is deemed to be the clearest.

10. The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., does not
violate equal
protection principles because it is narrowly tailored to deal with a compelling State
interest.

11. The Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., is not
overly broad or vague.
The Act is comprehensive, understandable, capable of application, and sufficiently clear
and definite to withstand a challenge of vagueness and overbreadth.

12. An involuntary commitment pursuant to the Sexually Violent Predator Act,
K.S.A. 59-29a01 et seq., does not violate a plea agreement governing a prior
conviction.
Commitment under the Act is grounded solely on a mental ailment and present
dangerousness. Prior convictions are not the basis for commitment under the Act and
serve only to identify individuals as a member of the pool of people potentially subject to
the Act. Civil commitment following the service of a sentence is collateral to a plea and
independent of the criminal case.

13. There exists no basis for an argument that the Sexually Violent Predator Act,
K.S.A. 59-29a01 et seq., violates the prohibition against cruel and unusual
punishment where
commitment proceedings under the Act have been clearly held to be civil in nature, not
criminal or punitive.

14. The probable cause determination in a sexual predator case must be compared to
that of a
criminal trial and requires evidence sufficient to cause a person of ordinary prudence and
action to conscientiously entertain a reasonable belief that the accused is a sexually
violent predator.

15. Under the facts of this case, the State presented evidence at the probable cause
hearing
that appellant was a sexually violent predator, pursuant to K.S.A. 59-29a02(a), and
appellant has failed to show that any error at the probable cause hearing prejudiced him at
trial. Where an accused has gone to trial and been found to be a sexually violent predator
beyond a reasonable doubt, any error at the probable cause hearing stage is harmless
unless it appears that the error caused prejudice at trial.

16. In the absence of an objection at the trial court level to the failure to make
findings under
K.S.A. 60-252, the trial judge is presumed to have made necessary findings, and this
precludes appellate review of this issue.

17. Our standard of review regarding the admission or exclusion of evidence, subject
to
exclusionary rules, is that of abuse of the trial court's discretion. A court may only be
said to have abused its discretion when its actions are arbitrary, fanciful, or unreasonable,
or when no reasonable person would adopt the view of the trial court.

18. In order to establish that an individual is a sexually violent predator, the State is
required
to show he or she has been convicted or charged with a sexually violent offense and
suffers from a mental abnormality or personality disorder which makes him or her likely
to engage in predatory acts of sexual violence. Evidence of prior sexually violent acts is
clearly relevant to prove the individual suffers from a mental abnormality or personality
disorder and the likelihood of engaging in predatory acts of sexual violence in the future.

19. Where evidence of the nature prohibited by K.S.A. 60-455 is independently
admissible, it
may properly be received. The critical issues in a sexual predator case make the evidence
of prior conduct, charged or uncharged, material evidence in the case. The prohibitions
of K.S.A. 60-455 are not applicable or governing in a case of this nature.

20. The existence of a plan to commit further sex crimes is highly relevant in a
sexually
violent predator case and is clearly admissible.

21. Under the facts of this case, the trial court, under pressure from the statutory
45-day time
limitation to try this sexually violent predator case, fairly ruled upon discovery matters
and did not abuse its discretion.

22. The privilege against self-incrimination does not apply to civil commitment
proceedings
under the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq.

23. It is the duty of the trial court to properly instruct the jury upon a party's
theory of the
case. Errors regarding jury instructions will not demand reversal unless they result in
prejudice to the appealing party. Instructions in any particular action are to be considered
together and read as a whole, and where they fairly instruct the jury on the law governing
the case, error in an isolated instruction may be disregarded as harmless. If the
instructions are substantially correct, and the jury could not reasonably be misled by
them, the instructions will be approved on appeal.

24. As the State's burden under the Sexually Violent Predator Act, K.S.A.
59-29a01 et seq.,
is proof beyond a reasonable doubt, our standard of review when the sufficiency of the
evidence is challenged is whether, after review of all the evidence, viewed in the light
most favorable to the prosecution, the appellate court is convinced a reasonable factfinder
could have found the defendant to be a sexually violent predator beyond a reasonable
doubt.

Nancy Orrick, of Olathe, argued the cause and was on the brief for appellant.

W. Scott Toth, assistant district attorney, argued the cause, and James
P. Muehlberger, assistant
district attorney, Paul J. Morrison, district attorney, and Carla J. Stovall,
attorney general, were with him on
the brief for appellee.

The opinion of the court was delivered by

LARSON, J.: Kenneth M. Hay appeals from a jury finding that he is a sexually
violent predator and from his involuntary civil confinement pursuant to the Kansas
Sexually Violent Predator Act (the Act), K.S.A. 59-29a01 et seq.

Many of the 18 issues which are raised by this appeal have been decided by the
United States Supreme Court decision in Kansas v. Hendricks, 521 U.S. __, 138 L.
Ed.
2d 501, 117 S. Ct. 2072 (1997), which reversed our decision in In re Care &
Treatment
of Hendricks, 259 Kan. 246, 912 P.2d 129 (1996). Hay also raises issues that directly
relate to the facts in this case, which we first set forth in some detail.

Statement of facts

Hay has been convicted of numerous sexual offenses. In October 1984, he pled
no contest to a misdemeanor battery charge after he unsuccessfully attempted to rape
his former wife, then masturbated and ejaculated on her back.

In July 1988, Hay pled guilty to the offense of harassment by telephone. This
charge resulted from 20 to 30 sexually obscene phone calls made to various strangers.
In March 1991, Hay was convicted after a jury trial of lewd and lascivious behavior. In
February 1993, Hay pled guilty to five counts of aggravated indecent solicitation of a
child, and the State dismissed four counts of lewd and lascivious behavior and three
counts of aggravated indecent solicitation of a child. The underlying factual basis for
the 1991 and 1993 charges involved Hay allegedly luring 6- to 12-year-old children,
almost exclusively girls, toward his vehicle where he was masturbating.

The State's petition to involuntarily commit and treat Hay under the Act was filed
on February 23, 1995. The probable cause hearing was held on February 28, 1995, in
which Hay's motion for dismissal was taken under advisement with leave for written
briefs to be filed.

At the hearing, the State presented the testimony of a psychologist, Robert
Huerter, from the Larned State Security Hospital. Huerter testified Hay had been
diagnosed with pedophilia, opposite sex, nonexclusive type and personality disorder not
otherwise specified. Huerter found it clinically significant that Hay had demonstrated
progression in his acts and had multiple victims and that many of his victims were
strangers. Huerter believed that Hay posed a danger to others, especially young girls.

The court found probable cause to believe Hay was a sexually violent predator
and ordered his evaluation at Larned State Security Hospital. Prior to a trial scheduled
within the 45-day time limitation set by the statute, the court held two hearings
regarding discovery issues. The court denied Hay's motion to dismiss on March 28,
1995.

The trial commenced on April 3, 1995, and the State presented the testimony of
numerous victims of the various crimes, including one girl who stated that Hay had
given her a bath and rubbed her private parts. The most damaging evidence presented
by the State was that of Mark Dowling, another convicted sex offender, who, over Hay's
vigorous objections, testified he had communicated with Hay on numerous occasions
and claimed they had formulated a plan for committing further sex offenses upon their
release from prison.

Dowling testified that he and Hay had discussed a plan to abduct a young girl,
hold her in some isolated area, and subject her into becoming a sex slave through
psychological and sexual conditioning. Although Dowling testified directly as to this
plan, a letter he had written to Hay, which had been accidentally intercepted by the
district attorney's office, was admitted into evidence. This letter was graphic in detail
and showed Hay's sexual violations could be expected to escalate. Although Hay's
counsel did a competent job in attempting to discredit Dowling, Dowling's testimony, if
given credence by the jury, was sufficient by itself to justify the ultimate verdict which it
reached in this case.

The State also presented the testimony of two expert witnesses, Dr. Charles
Befort, a psychologist at Larned State Security Hospital, and Michael Boniello, a clinical
social worker. Dr. Befort testified that he had evaluated Hay for several days in March
1995. He diagnosed Hay as a pedophile. Befort stated Hay had told him his current
masturbation fantasies involve "little girls." It was significant to Befort that Hay's acts
had become chronic, as they had occurred over a decade, and were progressive. Dr.
Befort concluded that Hay was at a high risk to reoffend.

Boniello testified regarding the Sexual Offender's Treatment Program at the
Lansing Correctional Facility. He testified that sexual abuse of children by adults
results in emotional abuse to the child, regardless of whether the child is physically hurt.
He also testified regarding progression and serialization of sex offenders. Boniello
stated it would be very significant if a sex offender was found to be communicating with
another sex offender.

Hay presented the testimony of Gary Heitman, a counselor at the Lansing
Sexual Offender's Treatment Program, who had treated Hay. Heitman admitted Hay
had some issues left to address at the completion of the program, but claimed he would
not have certified Hay's completion of the program if he had not seen some
advancement. Heitman stated that the great majority of prisoners who receive
treatment in the program do not reoffend.

Hay also presented the testimony of Dr. William Logan and Dr. John Wisner,
both forensic psychiatrists. Dr. Logan essentially testified that most pedophiles do not
reoffend and that he had noticed improvement in Hay's condition. He estimated Hay's
chances of reoffending at about 20% and denied that Hay's offenses displayed
progression. Dr. Wisner testified there was no evidence that the viewing of adults
engaging in sexual acts produces harm in a child. Dr. Wisner did not consider the acts
Hay had engaged in to be violent or that Hay was at risk to progress.

At the conclusion of the evidence and following instructions, the jury determined
Hay was a sexually violent predator. Hay's appeal was transferred to us on our own
motion pursuant to K.S.A. 20-3018(c) and held pending the appeal in the Hendricks
case.

Hay has raised the following issues pertaining to the constitutionality of the
Sexually Violent Predator Act: (1) The Act is criminal in nature; (2) the Act violates the
prohibition against double jeopardy; (3) the Act violates the prohibition on ex post facto
laws; (4) the Act violates substantive due process; (5) the Act violates procedural due
process; (6) the Act violates guarantees of equal protection; (7) the Act is overly broad
and vague; (8) the filing of the petition under the Act violated the 1993 plea agreement
between the State and Hay; and (9) a commitment pursuant to the Act constitutes cruel
and unusual punishment.

We will not attempt here to comment or ruminate on the United States Supreme
Court opinion in Hendricks, but only to set forth how the majority opinion governs
the
issues Hay raises. To the extent analysis is necessary or helpful, we have been aided
by McAllister, "Punishing" Sex Offenders, 46 Kan. L. Rev. 27 (1997).

Hendricks explicitly governs as to the first four of Hay's contentions. The
Court
unanimously rejected the substantive due process challenges to the Act. 138 L. Ed. 2d
at 511-14. Justice Breyer's dissent began: "I agree with the majority that the Kansas
Act's 'definition of "mental abnormality"' satisfies the 'substantive' requirements of the
Due Process Clause." 138 L. Ed. 2d at 522. This disposes of the substantive due
process issue raised by Hay.

As to Hay's first contention that the Act is criminal in nature, a majority of the
Court stated: "We therefore hold that the Act does not establish criminal proceedings
and that involuntary confinement pursuant to the Act is not punitive. Our conclusion
that the Act is nonpunitive thus removes an essential prerequisite for both Hendricks'
double jeopardy and ex post facto claims." 138 L. Ed. 2d at 519.

"We have sustained civil commitment statutes when they have coupled proof of
dangerousness with the
proof of some additional factor, such as a 'mental illness' or 'mental abnormality.' . . . The Kansas
Act is
plainly of a kind with these other civil commitment statutes: . . . . The precommitment
requirement of a
'mental abnormality' or 'personality disorder' is consistent with the requirements of these other
statutes
that we have upheld in that it narrows the class of persons eligible for confinement to those who
are
unable to control their dangerousness." 138 L. Ed. 2d at 512-13.

With this recognition that the statute is, as it specifically states, "a civil
commitment procedure for the long-term care and treatment of the sexually violent
predator," K.S.A. 59-29a01, the civil nature of the proceedings is clearly established.

We will not comment on either the Hendricks' majority or minority opinions'
concern with the "treatment" aspect of the Act, for there was no evidence in the record
when the case was first presented to us as to Hay's treatment other than his
commitment to the Kansas Department of Social and Rehabilitation Services to be
housed in a totally separate and segregated unit from the general prison population.
The Act has been deemed a civil commitment which is not criminal in nature. Due to
this significant holding, the foundation for Hay's constitutional challenges has been
shattered; therefore the remainder of his arguments must clearly fall.

As to the double jeopardy issue, the Hendricks Court held: "Because we
have
determined that the Kansas Act is civil in nature, initiation of its commitment
proceedings does not constitute a second prosecution." 138 L. Ed. 2d at 519-20.
Hendricks also argued that even if the Act survived the "multiple prosecution" test, it
failed the "same elements" test of Blockburger v. United States, 284 U.S. 299, 76 L.
Ed.
306, 52 S. Ct. 180 (1932). The Court replied:

"Under Blockburger, 'where the same act or transaction constitutes a violation of
two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or only one, is
whether each
provision requires proof of a fact which the other does not.' [Citation omitted.] The
Blockburger test,
however, simply does not apply outside of the successive prosecution context. A proceeding
under the
Act does not define an 'offense,' the elements of which can be compared to the elements of an
offense for
which the person may previously have been convicted. Nor does the Act make the commission
of a
specified 'offense' the basis for invoking the commitment proceedings. Instead, it uses a prior
conviction
(or previously charged conduct) for evidentiary purposes to determine whether a person suffers
from a
'mental abnormally' or 'personality disorder' and also poses a threat to the public. Accordingly,
we are
unpersuaded by Hendricks' novel application of the Blockburger test and conclude
that the Act does not
violate the Double Jeopardy Clause." 138 L. Ed. 2d at 520.

Hendricks' ex post facto contention was quickly discounted because

"the Act does not impose punishment; thus, its application does not raise ex post facto
concerns.
Moreover, the Act clearly does not have retroactive effect. . . . Because the Act does not
criminalize
conduct legal before its enactment, nor deprive Hendricks of any defense that was available to
him at the
time of his crimes, the Act does not violate the Ex Post Facto Clause." 138 L. Ed. 2d at 520-21.

Although the remaining issues raised by Hay were not directly ruled upon by the
United States Supreme Court in Hendricks, each is without sufficient justification to
require or allow us to strike down the Act on the basis of unconstitutionality. We
commence our limited analysis of these remaining issues by remembering our
longstanding and well-established rules that the constitutionality of a statute is
presumed, that all doubts must be resolved in favor of its validity, and that before a
statute may be struck down, it must clearly appear that the statute violates the
Constitution. U.S.D. No. 503 v. McKinney, 236 Kan. 224, 230, 689 P.2d 860
(1984).

The fundamental requirement of due process is a fair trial in a fair tribunal. State
v. Green, 245 Kan. 398, 404, 781 P.2d 678 (1989). To the same result, in Crane v.
Mitchell County U.S.D. 273, 232 Kan. 51, Syl. ¶ 1, 652 P.2d 205 (1982), we said:
"The
essential elements of due process of law are notice and an opportunity to be heard and
to defend in an orderly proceeding adapted to the nature of the case."

These requirements are clearly satisfied by this Act, which provides for all
necessary basic protections, including appointed counsel, a probable cause hearing,
appointment of qualified experts for examinations, a jury trial requiring a unanimous
decision, appeals, annual examinations, discharge petitions, hearings, and the strictest
possible burden of proof on the State.

The lengthy descriptions of the Act in the In re Care & Treatment of
Hendricks,
259 Kan. at 267-69, and the Hendricks, 138 L. Ed. 2d at 508-10 opinions suggest the
procedures for civil commitment under the Act are adequate to ensure that procedural
due process is satisfied. Any assertion that a person found to be a sexual predator
under the Act is limited to one attempt to seek release is without merit, and the right to
receive additional evaluations continues after the trial. The obligations of procedural
due process are clearly satisfied by the Act.

Although equal protection of the law is guaranteed by the Fourteenth
Amendment to the United States Constitution and §§ 1 and 2 of the Bill of Rights of
the
Kansas Constitution, our decision on Hay's equal protection contention is foretold by
the result of the substantive due process issue. The difference between due process
and equal protection was established in Peterson v. Garvey Elevators, Inc., 252 Kan.
976, Syl. ¶ 1, 850 P.2d 893 (1993), where we explained:

"The difference between the constitutional concepts of due process and equal protection
is that
due process emphasizes fairness between the state and the individual dealing with the state,
regardless
of how other individuals in the same situation are treated, while equal protection emphasizes
disparity in
treatment by the state between classes of individuals whose situations arguably are
indistinguishable."

Nevertheless, the tests for determining the constitutionality of a statute under due
process and equal protection grounds weigh almost identical factors. Clements v.
United States Fidelity & Guaranty Co., 243 Kan. 124, 127, 753 P.2d 1274 (1988).
We
make this constitutional analysis subject to a strict scrutiny standard, see Farley v.
Engelken, 241 Kan. 663, 669, 740 P.2d 1058 (1987), with the burden placed on the
State to show the required State interest for the action.

There is no doubt that the civil commitment of sexually violent predators involves
so significant a deprivation of liberty that the protections of due process and equal
protection are involved. However, in its finding that the Act did not violate substantive
due process, the Court in Hendricks made the following statements which may
likewise
be applied to this equal protection issue:

"The Court has recognized that an individual's constitutionally protected interest in avoiding
physical
restraint may be overridden even in the civil context:

'[T]he liberty secured by the Constitution of the United States to every person within its
jurisdiction
does not import an absolute right in each person to be, at all times and in all circumstances,
wholly free
from restraint. There are manifold restraints to which every person is necessarily subject for the
common
good. On any other basis organized society could not exist with safety to its members.'
Jacobson v.
Massachusetts, 197 U.S. 11, 26, 49 L. Ed. 643, 25 S. Ct. 358 (1905).

Accordingly, States have in certain narrow circumstances provided for the forcible civil
detainment of
people who are unable to control their behavior and who thereby pose a danger to the public
health and
safety. [Citations omitted.]" 138 L. Ed. 2d at 512.

We hold that Hay's contention that similarly situated people are not treated
similarly under the Act is without merit. All members of the class of persons of which
Hay is a part are subject to treatment identical to that which he has received, and there
exist clear distinctions between this class and other classes which are not similarly
treated.

The legislature has broad constitutional authority to adopt statutory programs to
confine and treat people who might be dangerous to themselves or others and who
suffer from some mental ailment, whether a mental abnormality, a personality disorder,
or a mental illness as statutorily defined. The legislature, however, is under no duty to
act to the fullest extent of its authority.

The Act focuses on the narrow problem of mental abnormality and violent
predatory sex crimes. The legislative history shows the target group was a small
number of habitual sex offenders, who, because of their psychological makeup, pose
an immediate danger to the public.

Equal protection of the law does not require the State to choose between
attacking every aspect of public danger or not attacking any part of the danger at all.
As we said in Manzanares v. Bell, 214 Kan. 589, 615, 522 P.2d 1291 (1974):
"'[T]he
legislative authority . . . is not bound to extend its regulations to all cases which it might
possibly reach. The legislature "is free to recognize degrees of harm and it may confine
its restrictions to those classes of cases where the need is deemed to be the clearest."'"
The Act does not violate equal protection principles for the same reason it does not
violate substantive due process--it is narrowly tailored to deal with a compelling State
interest.

Nor is the Act overly broad or vague. We are duty bound to avoid a vague
construction of the Act as is reasonably possible. Boatright v. Kansas Racing
Comm'n,
251 Kan 240, Syl. ¶ 1, 834 P.2d 368 (1992). All of the provisions of the Act were
summarized in both Hendricks, 138 L. Ed. 2d at 508-10, and In re Care &
Treatment of
Hendricks, 259 Kan. at 267-69, which clearly indicate the Act is comprehensive,
understandable, capable of application, and sufficiently clear and definite to withstand a
challenge of vagueness and overbreadth.

Hay's claim that the filing of the commitment petition in this case violated his plea
agreement is likewise without merit. Hay's argument is unpersuasive for several
reasons.

Hay's involuntary commitment is grounded solely on his mental ailment and
present dangerousness. His earlier convictions were not the basis for his commitment
and served only to identify him as a member of the pool of people potentially subject to
the Act. Hay's present confinement is not punishment for any offense, but merely civil
commitment based on his mental condition.

Civil commitment following the service of a sentence is collateral to a plea and
independent of the criminal case. See George v. Black, 732 F.2d 108, 110-11 (8th
Cir.
1984). In addition, the plea agreement is immaterial as far as proceedings under the
Act are concerned.

Last, there exists no basis for Hay's argument that the Act violates the prohibition
against cruel and unusual punishment where commitment proceedings under the Act
have been clearly held to be civil in nature, not criminal or punitive. This issue is
without merit and requires no further comment.

With these nine constitutional issues resolved, we turn to issues pertaining to
pretrial and trial matters, none of which compel reversal.

Probable cause

Hay first alleges the trial court erred in its initial finding of probable cause. The
probable cause determination in a sexual predator case must be compared to that of a
criminal trial and requires evidence sufficient to cause a person of ordinary prudence
and action to conscientiously entertain a reasonable belief that the accused is a
sexually violent predator. See State v. Butler, 257 Kan. 1043, 1059, 897 P.2d 1077
(1995); State v. Chapman, 252 Kan. 606, 620, 847 P.2d 1247 (1993).

Hay makes a shatter-gun argument of innumerable violations, including
insufficient petition, improper foundation of an expert opinion, infringement of the
physician-patient privilege, and the taking of judicial notice of court files, then finally
contends the only real question was "SHOULD A FLASHER BE LOCKED UP
FOREVER?" None of these contentions are buttressed by any legal arguments. They
also are in violation of Supreme Court Rule 6.02(d) (1997 Kan. Ct. R. Annot. 33), as
they are made without being keyed to the record on appeal and are, therefore,
presumed to be without support in the record. The Minnesota cases Hay cites are not
applicable to the factual basis of this case or to Kansas law.

The State presented evidence at the probable cause hearing that Hay was a
sexually violent predator, pursuant to K.S.A. 59-29a02(a), and Hay has failed to show
that any error at the probable cause hearing prejudiced him at trial. Because of this, a
rule applicable in criminal proceedings is relevant here: "[W]here an accused has gone
to trial and been found guilty beyond a reasonable doubt, any error at the preliminary
hearing stage is harmless unless it appears that the error caused prejudice at trial."
Butler, 257 Kan. at 1062. In a sexually violent predator proceeding, where
respondent
has gone to trial and been found to be a sexually violent predator beyond a reasonable
doubt, any error at the probable cause hearing stage is harmless unless it appears that
the error caused prejudice at trial. This issue is without merit.

Dismissal and post-trial motions

All of these motions were based on the constitutional arguments previously
disposed of or the following arguments, and this issue need not be further addressed
except as it bears on the standard of review applied to each of the trial issues. The trial
court properly ruled on all motions presented.

Required findings of fact and conclusions of law

Hay contends the trial court's brief statement at the hearing declaring the Act to
be constitutional fails to comply with Supreme Court Rule 165 (1997 Kan. Ct. R. Annot.
180) and K.S.A. 60-252. This statute provides in part: "In all actions tried upon the
facts without a jury or an advisory jury or upon entering summary judgment or
involuntary dismissal, the judge shall find, and either orally or in writing state, the
controlling facts."

We doubt this provision is even applicable to this case as the ultimate decision
here was made by a jury. Additionally, the trial court's finding that the Act was civil in
nature was the controlling basis for the conclusion that the Act was not unconstitutional.
The decision may have been somewhat cursory, but this was clearly understandable in
light of the brief time frame under which all parties were operating in order to try this
case within the statutory time limitation.

Finally, although K.S.A. 60-252 does state that "[r]equests for findings are not
necessary," we have held that in the absence of an objection at the trial court level to
the failure to make findings, the trial judge is presumed to have made necessary
findings, and this precludes appellate review of this issue. Celco, Inc. of America v.
Davis Van Lines, Inc., 226 Kan. 366, 368-69, 598 P.2d 188 (1979). As no such
objection has been found in the record submitted to us, Hay is precluded from now
raising this issue.

For any or all of these reasons, this issue is without merit.

Evidence of uncharged conduct

Our standard of review regarding the admission or exclusion of evidence, subject
to exclusionary rules, is that of abuse of the trial court's discretion. State v Baacke,
261
Kan. 422, 427, 932 P.2d 396 (1997). A court may only be said to have abused its
discretion when its actions are arbitrary, fanciful, or unreasonable, or when no
reasonable person would adopt the view of the trial court.

Hay alleges evidence of specific conduct was inadmissible pursuant to K.S.A.
60-455, was not relevant, and was used solely to inflame the jury.

In order to establish that Hay was a sexually violent predator, the State was
required to show he had been convicted of or charged with a sexually violent offense
and suffers from a mental abnormality or personality disorder which makes him likely to
engage in predatory acts of sexual violence. The evidence Hay challenges was clearly
relevant to prove he suffers from the condition of pedophilia and that he is likely to
engage in predatory acts of sexual violence in the future. We are hard-pressed to see
how such evidence can be prohibited by K.S.A. 60-455 when it is an essential element
of the required proof and necessary for the decision-making process of the jury.

Our ultimate conclusion is that K.S.A. 60-455 was not violated by the evidence
admitted in this case because the prior acts were either a necessary element of the
charged conduct or relevant evidence which, while obviously prejudicial to Hay's
position, is probative of the ultimate issue the jury is required to determine. Hay
contends the evidence presented is in direct violation of the provisions of K.S.A. 60-455, which
reads as follows:

"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a
specified
occasion is inadmissible to prove his or her disposition to commit crime or civil wrong as the
basis for an
inference that the person committed another crime or civil wrong on another specified occasion
but,
subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some
other
material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or
absence of
mistake or accident."

This provision was intended to prohibit usage of a previous crime in another trial
to infer the disposition to commit the crime currently being charged:

"This states the generally accepted rule rejecting evidence of another crime or civil wrong
as proof
that a person committed a crime or civil wrong on a specified occasion. The limitation is
directed against
the idea that when it is shown that a person committed a crime on a former occasion there arises
an
inference that that person has a disposition to commit crime and therefore committed the crime
now
charged. The exceptions to the exclusionary rule where the evidence is relevant to some element
of the
case are stated." 1 Gard's Kansas C. Civ. Proc. 3d Annot. § 60-455 (1997).

We have held in several instances that where evidence of the nature prohibited
by K.S.A. 60-455 is independently admissible, it may properly be received. See State
v. Crossman, 229 Kan. 384, 387-88, 624 P.2d 461 (1981); State v. Martin,
208 Kan.
950, 952, 495 P.2d 89 (1972).

The critical issues in a sexual predator case make the evidence of prior conduct,
charged or uncharged, material evidence in the case. We hold the prohibitions of
K.S.A. 60-455 are not applicable or governing in a case of this nature.

Although a similar statute was not involved, the same result was obtained in the
Washington sexual predator case of Personal Restraint of Young, 122 Wash. 2d 1,
857
P.2d 989 (1993), where testimony by the victims of prior crimes was expressly allowed.
The court specifically declared: "In assessing whether an individual is a sexually violent
predator, prior sexual history is highly probative of his or her propensity for future
violence." 122 Wash. 2d at 53.

Dowling's testimony and letter regarding post-release plans

This issue is also subject to an abuse of discretion standard of review.

Hay makes a highly indignant argument that Dowling's testimony and the letter
he wrote to Hay were irrelevant, had no probative value, inflamed the jury, and trampled
on his due process rights.

We have not set forth Dowling's testimony in all its lurid detail and need not
preserve in print the disgusting nature of the letter, but it is sufficient to say this
evidence was exceedingly damaging to Hay and totally counteracted his contention that
he was "merely a flasher." It was strong proof that his actions could be expected to
escalate and place young girls at risk wherever Hay might be located.

Dowling's testimony, although subject to a credibility attack and a showing that
he was possibly protecting himself from damaging evidence if sexual predator
proceedings are commenced against him, clearly demonstrated he and Hay had been
formulating a plan to commit additional and more violent sexual acts in the future. The
plan was manifestly described in Dowling's testimony, which provided a sufficient
evidentiary foundation for the admission of the letter.

The existence of the plan was highly relevant and, like all "dynamite" evidence in
any case, was prejudicial in that it proved the likelihood that Hay would commit acts
of
sexual violence in the future and that he did in fact suffer from a mental abnormality or
personality disorder. This type of prejudice, however, does not bar the admission of
such evidence, which was all clearly admissible.

Additionally, as we have previously stated, K.S.A. 60-455 is also not applicable
to this evidence, despite Hay's contention that the statute bars its introduction.

Once a sufficient foundation was laid, which it clearly was, Dowling's credibility
and the truth of the alleged conspiracy plainly fell within the province of the jury to
determine and decide. Dowling's testimony and the letter were properly admitted. The
trial court did not abuse its discretion in doing so.

In the present case, the parties and the court were severely pressed to bring this
case to trial within the 45-day time limitation specified in the Act. Hay now claims that
he was prejudiced by the State's inadequate responses to his discovery requests and
failure to supply final witness lists, in violation of the court's discovery orders. Hay fails
to point out that he made a volumous discovery request on March 17, 1995, which the
State was ordered to comply with to the best of its ability within 1 week so that the trial
could proceed on April 3, 1995. In making this ruling, the court stated:

"I'm sorry about this. But the legislature didn't allow enough time to try one of these cases.
But they said
45 days. . . .

"It's faster than I want to try it and I feel sorry for both of you to try to prepare the case.
But I'm
not sure there is much to be gained by arguing about who has the more substantial burden. It's a
substantial burden on both sides.

"I do think, this is a civil proceeding, it's appropriate to submit a witness and exhibit list
as soon as
possible and I will order both sides to do that by March 24th. It's not my order, however, that be
an
exclusive list, although I may have to push you to an exclusive list sometime the following week.
I might
want to leave open the possibility that somebody could add a witness or exhibit at least in the
following
week. But I will order that you furnish witnesses and addresses and identify exhibits known to
you and
anticipated to be used at trial by March 24th."

Prior to trial, Hay complained to the trial court about the late endorsement of
witnesses and the failure to provide their addresses or phone numbers. The State
explained its reasons for the delay, which the trial court accepted as reasonable. After
making some orders insuring that Hay would get access to the proposed witnesses, the
judge ruled, "But under all the circumstances I think furnishing that information on the
31st was in compliance with my order and these folks ought not be excluded on that
basis."

In light of the fact that the court specifically ordered the State to provide Hay
access to the witnesses, it does not appear from a reading of the record that the State's
explanation for the delay was unreasonable or that the court abused its discretion in
deciding to allow the State to present these witnesses. See State v. Coleman, 253
Kan. 335, 349, 856 P.2d 121 (1993) ("trial courts consistently permit the late
endorsement of State witnesses [and we generally uphold those decisions].").

Furthermore, Hay does not mention that the court did prevent the State from
presenting the testimony of another witness discovered on the second day of trial. He
also fails to discuss the fact that his expert witnesses refused to talk to the State and
that no report was given to the State regarding their opinions until the second day of
trial. This explains the trial court's decision to allow the State to endorse an additional
expert on the third day of trial. We hold the record clearly shows that the trial court,
under pressure from the 45-day time limitation, fairly ruled upon discovery matters and
did not abuse its discretion.

Self-incrimination

Hay next alleges his Fifth Amendment rights were violated when he was required
to submit to a psychological evaluation. However, when the United States Supreme
Court's opinion in Hendricks held the Act was civil in nature, not criminal or
punitive, this
issue was effectively decided. Hendricks relied in principal part on Allen v.
Illinois, 478
U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986), which addressed this exact issue.
See Hendricks, 138 L. Ed. 2d at 514-19.

Allen had argued to the Court that because a proceeding pursuant to the Illinois
Sexually Dangerous Persons Act was criminal in nature, the Fifth Amendment right to
remain silent entitled him to refuse to answer all questions posed by psychiatrists.
Pointing out that the decision to provide certain safeguards applicable in criminal trials
does not itself transform a commitment proceeding into a criminal prosecution requiring
the full panoply of rights, the Court stated:

"Although the fact that incarceration may result is relevant to the question whether the
privilege against
self-incrimination applies, Addington [v. Texas, 441 U.S. 418, 60 L. Ed. 2d 323, 99
S. Ct. 1804 (1979),]
demonstrates that involuntary commitment does not itself trigger the entire range of criminal
procedural
protections. Indeed, petitioner apparently concedes that traditional civil commitment does not
require
application of the privilege." 478 U.S. at 372.

All of the cases cited by Hay are premised on a finding that the commitment
proceedings are criminal in nature, and when that premise falls, all of his arguments on
this issue must fall as well. He completely fails to recognize or address Allen, a case
directly on point, which is binding authority on us as to this issue.

Hay's Fifth Amendment protections were not violated by the Act.

Jury instructions

Hay contends on appeal that the jury instructions were "improper,
confusing, vague and
ambiguous." These conclusory contentions, however, are not buttressed by any explicit
references to the specific objections made at the trial court level, nor has Hay argued or shown to
us which of the instructions are in error or how they prejudiced him.

In determining claims that a jury has been so inadequately or improperly instructed so as
to require reversal and the grant of a new trial, we apply the general statements set forth in
Noel
v. Pizza Management, Inc., 258 Kan. 3, 12, 899 P.2d 1013 (1995) (quoting Cerretti
v. Flint Hills
Rural Electric Co-op Ass'n, 251 Kan. 347, 353, 837 P.2d 330 [1992]):

"'It is the duty of the trial court to properly instruct the jury upon a party's theory of the
case. Errors
regarding jury instructions will not demand reversal unless they result in prejudice to the
appealing party.
Instructions in any particular action are to be considered together and read as a whole, and where
they fairly instruct
the jury on the law governing the case, error in an isolated instruction may be disregarded as
harmless. If the
instructions are substantially correct, and the jury could not reasonably be misled by them, the
instructions will be
approved on appeal.'"

While we cannot say that specific objections were not raised before the trial court, the
appropriateness or reasons for these objections is not argued or shown to us on appeal, and we
are left with the general statement that they were improper. Such is not sufficient for us to make
any meaningful review.

The instructions as given accurately and fairly instructed the jury. They are substantially
correct and did not mislead the jury. To the extent we are able to consider this inadequately
raised issue, it has absolutely no merit.

Sufficiency of the evidence

As the State's burden under the Act is proof beyond a reasonable doubt, our standard of
review when the sufficiency of the evidence is challenged is whether, after review of all the
evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a
reasonable factfinder could have found the defendant to be a sexually violent predator beyond a
reasonable doubt. This is substantially the same standard applied in a criminal case. See
State v.
Orr, 262 Kan. 312, 344, 940 P.2d 42 (1997).

The testimony of the numerous victims, the testimony of the State's experts, and the
testimony of Mark Dowling all clearly support the jury's verdict. We are convinced a reasonable
factfinder could have found Hay to be a sexually violent predator beyond a reasonable doubt.